Raj v Padiyachi [2012] FJMC 163; Civil Case 22.2006 (3 July 2012)

IN THE FIRST CLASS MAGISTRATES COURT
AT NASINU
CIVIL JURISDICTION

Civil Case No. 22/2006

BETWEEN:

DEO RAJ
[Plaintiff]

AND:

R. MORGAM PADIYACHI
[Defendant]

Ruling on Jurisdiction

1. The Plaintiff filed the writ of summons against the defendant on 24th February 2006 in Nasinu Magistrates Court. The writ was served on the defendant and the statement of defence was also filed. After that several court dates were given on application of either party.

2. On 29th December 2006 the case was for mention before his worship Resident Magistrate S. Temo (As he then was).

3. The plaintiff contention is on that day the matter was transferred Small Claims Tribunal, Suva. But Journal entry of the 29th December 2006 indicates different story. I reproduced it for clarity.

"29TH DECEMBER 2006

Plaintiff: Present

For Plaintiff: Komaisavai

Defendant: Present

Plaintiff: Plaintiff gave his car to defendant to be repaired. The car was half repaired. We agreed on the car repair for $100.

Defendant: I agree to repair plaintiff's car, to assist him. No repair price was agreed to. I agree to repair the car, knowing that I don't have the skill to repair the car.

Plaintiff: I agree with defendant to repair my car.

Komaisavai: Seek leave to withdraw claim and to pursue this matter in the Small Claims Tribunal.

Defendant: No objection.

Court: (1) Leave to withdraw Writ is granted.

(Sgd) S.TEMO

RESIDENT MAGISTRATE"

4. It is therefore evident that the Plaintiff had withdrawn the case. There is no transfer order given by this court on that day. The Plaintiff said in his written submission filed on 06-04-2010 the matter was filed on 24th February 2006 and at that time Small Claims Tribunal Court have no jurisdiction hear the matter was more than $2800.00 and cost to be added.

5. On 01st of December 2009 the SCT Claim No 2544 of 2009 order was delivered. The claim was dismissed. It mentioned:

"That this claim be stuck out as it is Six Thousand Five Hundred and Twenty Four Dollars and Thirteen Cents ($6524.13) and exceeds the jurisdiction of the SCT which is limited to $5000.00

If the claimant wishes to continue with his claim then he should relodge it with the Magistrate's Court at Nasinu.

The claim is therefore dismissed"

6. The court record shows that the plaintiff has filed the motion in this Court, on 24th July 2009. The motion was for re instate the case and the affidavit dated 03rd September 2008 is also filed along with the motion to support the re instatement. That affidavit in support shows claim is now $6442.13. The Plaintiff showed the breakdown as follows;

Total business loss:

"Transport	3500.00
Wheel Tax	80.00
Third party	28.00
Damage to car	2834.13
Total sum	$6442.13"

7. The Defendant has raised the objection the matter has been struck out in SCT; the Plaintiff somehow had the file transferred to the Magistrates Court when clearly his claim had been struck out.

8. The Defendant contends that the Plaintiff should have initiated new proceedings but failed to do so, instead somehow getting the file transferred to the Magistrates Court when the matter had been struck out.

9. It is apparent that the plaintiff has filed the notice of motion to reinstate the matter while his claim had already been dismissed. The direction of the SCT is the plaintiff to relodge the claim, instead he reinstate the original matter. When I peruse the case record there is no amended writ filed by the plaintiff to claim $6442.13" and original writ was reinstated. The original writ before me is only for sum of $2834.13. It is patent that this court has no jurisdiction to hear this matter.

10. The plaintiff had not followed the right direction of SCT. This court cannot refer this matter to SCT again as this matter was adjudicated and dismissed by the SCT. On the other hand this court has no jurisdiction to hear the case. Therefore, invariably matter to be struck out.

11. I note that the plaintiff was grumbling the delaying the process. The Fiji has adversarial system and it is face to face fight between the parties. The court should maintain the neutrality. Therefore parties should take necessary step to expedite their matters. If they fail it is not matter for blame others. The Ignorance of law is no excuse-Ignorantia Legis Neminem Excusat".

12. Considering all these facts, I make following orders.

1. The plaintiff's writ of summons is hereby struck out by want of jurisdiction.
2. Parties to bear their own cost.

100. Orders Accordingly
     

On 03rd July 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu